Holder: “I’m not sure” how many times I’ve approved seizing reporter phone records

posted at 8:01 am on May 15, 2013 by Ed Morrissey

Yesterday, Jay Carney held a news briefing in which he repeatedly claimed that the White House really has no idea what happens in executive branch agencies, which certainly stoked all sorts of confidence in Barack Obama’s executive abilities. At one point, when asked about whether the Department of Justice might have seized records of other news organizations, Carney told the reporter posing the question that he’d have to ask someone at the DoJ.

NPR did just that with Attorney General Eric Holder, the top man at Justice. And Holder says he can’t quite recallhow many times he’s seized reporter phone records (via David Freddoso and Drudge on Twitter):

During an interview with NPR’s Carrie Johnson on Tuesday, Holder was asked how often his department has obtained such records of journalists’ work.

“I’m not sure how many of those cases … I have actually signed off on,” Holder said. “I take them very seriously. I know that I have refused to sign a few [and] pushed a few back for modifications.”

Er … he’s refused to sign “a few” but isn’t sure how many he’s approved? Presumably, the few modifications for which he “pushed” resulted in approval eventually. That seems to strongly imply that this is a rather normal course of action at the Department of Justice — and for Holder. And note that Holder isn’t saying that he’s unclear about the operations within his executive purview, as Carney tried yesterday on Obama’s behalf — he’s unclear on how many times he himself has approved those seizures.

How legal is that? Signatories to a letter from Reporters Committee for Freedom of the Press to Holder argue that the DoJ broke the law in seizing the massive amount of records they did just in the current leak case:

Subpoenas of the news media for testimony and evidence are governed by theAttorney General’s guidelines found at 28 C.F.R. § 50.10 and incorporated into the U.S. Attorney’s Manual. See § 9-13.400. These guidelines were enacted in 1972 and were expanded specifically to cover telephone records in1980. They were developed to accommodate both the interests of the government in prosecuting crime and the First Amendment interests in reporting on issues of public concern. We know this to be true because theReporters Committee played a role in their promulgation. In this instance,where the Department subpoenaed two months of records related to 20telephone lines, including records from major AP bureaus and the home phone and cell phone records of individual journalists, the Department appears to have ignored or brushed aside almost every aspect of the guidelines. Each one merits specific review.

Narrow scope of the subpoena: Section 50.10(g)(1) requires that a subpoena “should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period.” The available evidence shows that no such constraints were applied here. Instead of being directed at relevant records on a limited topic for a closely circumscribed time period, the subpoena appears to have covered all records that could be relevant so that prosecutors could plunder two months of newsgathering materials to seek information that might interest them.

Seeking information from alternative sources: Sections 50.10(b) and 50.10(g)(1) require the Department to take “all reasonable alternative investigative steps” before subpoenaing phone records. Although the public is not in a position to know what alternatives were pursued, the sheer breadth of this subpoena suggests that it was an initial investigative step taken as part of a prosecutor’s desire to gather up even the most remote materialwhen beginning an investigation.

Obligation to inform and negotiate: Section 50.10(d) requires federal prosecutors to disclose their intent to pursue a subpoena and negotiate with the news media in “all cases” involving telephone records. Only if prosecutors determine that such negotiationswould “pose a substantial threat to the integrity of the investigation” are these obligations removed. The purpose of such an exception is to ensure, in the rare inquiry where there is a reason to be concerned about the preservation of evidence, that records are not lost or destroyed. By deciding in this case involving one of the nation’s oldest and most respected news organizations that a subpoena would pose such a threat, the Department has severely harmed its working relationship with the news media, which time and time again have undertaken good-faith efforts to cooperate with government lawyers in a way that protects the public’s interest both in law enforcement and in independent and autonomous newsgathering.

And now Holder himself seems to admit that he has a pattern of seizing these records, rather than having the AP seizure be the exception to the rule. Amazingly, Holder seems to think that his caveat of having refused to approve this kind of secret warrant and seizure “a few times” makes it look better.

Just imagine if this had happened during a Republican administration. Will the media finally begin to shake off its ideological affinity for an administration that snoops through its records, or has the transformation to lapdog industry become irreversible?